C2004/1204, Transcript of Proceedings [2004] AIRCTrans 1540 (26 April 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 447
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER THATCHER

C2004/1204

TRANSPORT WORKERS' UNION OF AUSTRALIA-WESTERN
AUSTRALIA BRANCH

and

SKYWEST AIRLINES PTY LTD

Application under section 170LW of the Act
for settlement of dispute re alleged non
payment of correct wages for a union member

PERTH

11.06 AM, FRIDAY, 16 APRIL 2004

PN1

MR N.J. HODGSON: I appear on behalf of the Transport Workers' Union of Australia and with me is an employee of Skywest, MR BRETT DOUGLAS.

PN2

THE COMMISSIONER: Yes Mr Hodgson.

PN3

MR D. JOHNSTON: I seek leave to appear as agent on behalf of Skywest Airlines Pty Ltd in this matter, with me is the Chief Operating Officer of Skywest, JOHANNA RAMSAY.

PN4

THE COMMISSIONER: Yes, leave to appear is granted.

PN5

MR HODGSON: No objection Commissioner.

PN6

THE COMMISSIONER: Thank you. Well, let us hear from Mr Hodgson, just tell me a bit of a general overview?

PN7

MR HODGSON: Yes Commissioner, if I may just a short bit of background information and then I would seek that we go into conference if the Commission believes that is appropriate. Commissioner this is a dispute between the company and TWU member, Mr Brett Douglas over essentially a promotion. What happens is on occasion the company offers promotions to pilots when they are expanding, when they are getting more planes they need to train people up to higher positions. They have a seniority list, believe it or not, it is called the Pilots' Seniority List and essentially pilots are ranked on this list and the next person - the next promotion that comes up is assigned to whoever is on top of that list.

PN8

THE COMMISSIONER: Yes.

PN9

MR HODGSON: Yes. So it essentially governs all promotions. Now that is referred to in the certified agreement, I've got a copy here Commissioner if you haven't got - - -

PN10

THE COMMISSIONER: Yes, I have one, I am just looking at clause 11, is this the one I should be looking at?

PN11

MR HODGSON: There is a clause 11(1), that essentially describes the seniority list and what is to happen when promotions arise. In terms of Mr Douglas he - the company appeared to be buying, or expanding, and they were going to get an F100 jet, another jet and so Brett - Mr Douglas, sorry, was considered for promotion in accordance with the pilots' seniority list and was assigned promotion on 12 November 2003. Now the dates are significant and I will come to the reasons why in a moment, but essentially he was advised, in writing, from the company, that he was promoted on 12 November 2003. Now, for a variety of reasons we don't have to go into today - - -

PN12

THE COMMISSIONER: Yes.

PN13

MR HODGSON: - - - given it is just a brief introduction that the F100 jet wasn't delivered, apparently the deal went through and so it was delayed.

PN14

THE COMMISSIONER: I see.

PN15

MR HODGSON: Now, clause 11(2), dealing with promotion and demotion at the last paragraph on page 12, it goes to what is supposed to happen if there is any delays in the promotions.

PN16

THE COMMISSIONER: This one starts: The company may defer? Is that the - okay.

PN17

MR HODGSON: That is correct. Now, if I can just quickly refer to it:

PN18

The company may defer a pilot's promotion for up to 120 days and the company may defer the promotion for in excess of 120 days but only subject to prior consultation with the pilot and their representative.

PN19

Now, the crux of the argument here, Commissioner, is there has been no consultation with the pilot and/or their representative. So we say the company are in breach of that part of the certified agreement. As I said the company have deferred the promotion beyond the operative date, which is 10 March 2004. So 120 days from that date, I mentioned in November, is 10 March. There has been no discussions between Mr Douglas and the company as to why the promotion has been deferred and in fact I am told that the company are refusing to discuss the matter either - or of late up till recently they have refused to discuss the matter with Mr Douglas, or his representative. Now, the impact on Mr Douglas is two-fold: one is financial and the other one is in terms of denied opportunities for other promotions. Now, what is supposed to happen, if there is no consultation and the pilot hasn't agreed to the matter being - the promotion being deferred, then on 10 March 2004, Mr Douglas's salary should have gone from $54,000 a year, to $74,000 a year. So that is the first problem that we have with what the company are doing.

PN20

THE COMMISSIONER: Just a minute, I am just looking at appendix B, is that something there, or am I looking at the wrong spot?

PN21

MR HODGSON: Yes, currently Mr Douglas is paid as in band 2, that is 37 to 50 seats turbo prop.

PN22

THE COMMISSIONER: Yes, that is 84 is that right, 84865, I see, okay.

PN23

MR HODGSON: No - sorry he is a First Officer.

PN24

THE COMMISSIONER: Yes.

PN25

MR HODGSON: Which is the one, two, three, four, fifth column along, you see the amount $54,000?

PN26

THE COMMISSIONER: Sorry, this is the rate from 1 July to 30 June?

PN27

MR HODGSON: That is correct, yes.

PN28

THE COMMISSIONER: Yes.

PN29

MR HODGSON: Now, having been promoted - - -

PN30

THE COMMISSIONER: I might be looking in the right spot, I've got a 55165, am I looking in the wrong spot, 1 July to 30 June?

PN31

MR HODGSON: Apparently I'm advised there is another schedule, appendix B that arose out of a facilitative agreement Commissioner.

PN32

THE COMMISSIONER: I see.

PN33

MR HODGSON: And then the weights in that - you are correct in reading the 5355 figure being a First Officer flying turbo prop, 37 to 50 seats.

PN34

THE COMMISSIONER: Right.

PN35

MR HODGSON: But that figure now reads 54,000.

PN36

THE COMMISSIONER: Right.

PN37

MR HODGSON: I apologise for that Commissioner.

PN38

THE COMMISSIONER: That's all right.

PN39

MR HODGSON: Now, if you go down to band 4.

PN40

THE COMMISSIONER: Yes.

PN41

MR HODGSON: 91 to 129 seats.

PN42

THE COMMISSIONER: Yes.

PN43

MR HODGSON: That now - under the facilitative agreement that now reads $74,000, I have a copy here if you wish to sight it.

PN44

THE COMMISSIONER: No, that is okay, so it is a fair bit of money you're saying?

PN45

MR HODGSON: Yes. So that is the first difficulty that we have in the sense that there has been no consultation and he has been denied the proper rate for his current position. The other problem is that because Mr Douglas accepted this promotion and he has missed other - missed the opportunity for other possible promotions.

PN46

THE COMMISSIONER: So another plane or something has come along?

PN47

MR HODGSON: Well, yes, there have been other promotions available and - - -

PN48

THE COMMISSIONER: And they haven't been - - -

PN49

MR HODGSON: Sorry?

PN50

THE COMMISSIONER: They haven't been delayed 120 days?

PN51

MR HODGSON: No, no, I'm not sure whether the reasons for the promotions are because they've got other planes, or whatever, I'm not sure, I stand to be given the detail on that, but there is correspondence to show that other people who were below Mr Douglas in that seniority list, have now been promoted to positions such as captains and of the like.

PN52

THE COMMISSIONER: And they haven't been deferred 120 days?

PN53

MR HODGSON: And they haven't been deferred, no. So really our position is we say this isn't fair. There has been attempts at discussion, it seems that the application the TWU lodged has prompted some attempts to - by the management to meet with our members - - -

PN54

THE COMMISSIONER: I'm just looking at the dispute, can you just refer me to the dispute, so we're looking at clause 9? Yes:

PN55

The matter will first be discussed between the individual pilot with a representative of ...(reads)... resolved either party may notify the existence of an industrial dispute to the AIRC, or agreed chair person.

PN56

So, what has happened in respect of that Mr Hodgson?

PN57

MR HODGSON: Well we say the first part of it, part A - 9A has been met Commissioner. The problem with satisfying part B is I'm told the General Manager has up till recently refused to discuss the matter with the SALPA representative which is the - yes SALPA is the Skywest Airlines Pilots Association, sorry.

PN58

THE COMMISSIONER: Okay then. So that meeting hasn't been able to be arranged?

PN59

MR HODGSON: That is right, because the General Manager has refused to meet with SALPA or up till now Mr Douglas, so therefore we rely on 9C that the matter is unresolved.

PN60

THE COMMISSIONER: Very well.

PN61

MR HODGSON: And unsatisfactorily resolved from our position and therefore we have referred the matter pursuant to 170LW to the Commission.

PN62

THE COMMISSIONER: Thanks Mr Hodgson. Yes Mr Johnston?

PN63

MR JOHNSTON: Yes, thank you Commissioner. Commissioner we will go first to the dispute settlement procedure if we may and I commend my friend on his brave attempts to make the most of an unsatisfactory situation in his submissions, but the facts of the matter in relation to the dispute settlement procedure are that the issue which is before the Commission today, was raised by Mr Douglas on 2 February 2004, which is well prior to 120 days after the notification of the success of his bid for an assignment on the F100. And that was in a memo to the Human Resources Manager of Skywest Airlines and that memo says:

PN64

I am writing this letter with respect to the promotion or assignment of Fokker 100 First Officer awarded to me on 11 November 2003 ...(reads)... financially disadvantaged and that attention is drawn to clause 11(2) of the certified agreement.

PN65

In response to Mr Douglas, which is dated 11 March, the Human Resources Officer of Skywest went through various reasons why Mr Douglas should not be paid at a higher rate and why the training to qualify him for the position of First Officer had been delayed, or why it was scheduled for around April and in fact we note that in that letter dated 11 March the Human Resources Officer says:

PN66

You were offered the option of varying your bid preferences in January to allow you to bid for an F50 command vacancy.

PN67

So we say there was an opportunity for Mr Douglas early in the new year, to vary his bid preference and that if he had wanted to seek a captain's berth on an F50 the turbo prop plane, he was able to do that in January. He chose not to vary his bid preference. That goes to the denial of promotional opportunities. On receipt of the letter of 11 March Mr Douglas wrote to the Human Resources Officer by a memo of 17 March, where he says:

PN68

Regarding my grievance I do not agree with the company position in your letter dated 11 March ...(reads)... I invite you to discuss these issues with myself and my SALPA representative at an earliest possible convenience.

PN69

On 24 March 2004, a further memo from Mr Douglas to Ms Johanna Ramsay, the Chief Operations Manager, but addressed to the General Manager, says:

PN70

Dear Jo, I am not satisfied with the outcome of the meeting held this morning with Skywest Human Resources Officer regarding my ...(reads)... my SALPA representative and I would like the opportunity to discuss this matter prior to that meeting.

PN71

The same day Mr Douglas was given a response from the Chief Operating Officer setting out available dates for a meeting, namely Monday, 29 March prior to 12 pm and Tuesday, 30 March, at a time convenient to Mr Douglas, noting that he was on reserve that day from 6 am, until 1700 hours and that was dated 24 March. We note the application of this present matter was made on 30 March. On that day, 30 March, Mr Douglas wrote again to the Chief Operating Officer, Johanna Ramsay, saying:

PN72

With reference to my recent letter dated 24 March 2004, I regret this letter was incorrectly addressed to you. I sincerely apologise for the inconvenience that my mistake may have caused you.

PN73

And on the same day Mr Douglas sends a memo to Mr Scott Henderson, the Chief Executive Officer of Skywest, the memo is addressed for the attention of General Manager/Chief Executive Officer and Mr Douglas in that says:

PN74

I am writing this letter as I am not satisfied with the result of the meeting held on the morning of 24 March 2004 ...(reads)... our discussion at our earliest possible convenience with a view to finding a mutually acceptable solution.

PN75

A further memo from Mr Douglas, dated 2 April, again to the General Manager/Chief Executive Officer, says:

PN76

Dear Mr Henderson,

PN77

Pursuant to the letter dated 30 March requesting the opportunity to discuss -

PN78

Sorry there is a typographical error there, but it is:

PN79

- the intention is discuss my grievance, I have been informed the earliest possible appointment with you is ...(reads)... and myself request a meeting at 10 am on 20 April '04, to discuss my issue. I look forward to this discussion.

PN80

There is a notation on the copy of that memo:

PN81

Okayed by Bron.

PN82

Which is a reference to Bronwyn Hollick, the Personal Assistant to the Chief Executive Officer, dated 5.4.04. So, I am instructed, Commissioner, that there was a meeting established in line with clause 9B of the dispute settlement procedure under the agreement. That meeting was for 20 April with the Chief Executive Officer of Skywest Airlines and the applicant parties here today and in our submission, Commissioner, we should not be here today at this hearing, because the dispute settlement procedure under the certified agreement is still in train and has not been completed.

PN83

THE COMMISSIONER: Is there some reason why the Chief Executive Officer - obviously Mr Douglas has been trying to see someone since 24 March, is there some reason why, just for my own information, is there some reason why - I know there has been Easter, but is there some reason why it has taken a month to be able to just get a meeting?

PN84

MR JOHNSTON: Well 24 March, of course, was a request of the - to the General Manager, but directed to the Chief Operating Officer, in fact dates were set for a meeting with the Chief Operating Officer, who was quite happy to meet with Mr Douglas in relation to his complaint. It was only on 30 March that he made the request to meet with the CEO. The reason is simply pressure of work, I am instructed, on behalf of the CEO, that in fact his own staff are having difficulty getting in to see him, he is - the airline is in a very strong growth phase and he is simply meeting with many people, both in Western Australia and other parts of the country and I believe overseas.

PN85

MS RAMSAY: Just to say that was the first date that was acceptable to both Brett Douglas and to Mr Henderson, so there were various other dates.

PN86

MR JOHNSTON: Yes, thank you. I am also instructed there were other dates prior to that, that were not mutually convenient.

PN87

THE COMMISSIONER: I could leave it at that, but I just wonder if you could respond to - are you in a position to respond to this paragraph in 11.2, which says:

PN88

The company may up to 120 days, but only in excess only subject to prior consultation with the pilot and their representative.

PN89

MR JOHNSTON: Yes. Commissioner, just before touching on that I would say that the position of Skywest this morning is - as we have stated that we should not be here. We are quite happy to discuss the matter and we will respond to that inquiry of the Commission as to our interpretation of 11.2, but we would say that the matter has still to be dealt with under the grievance procedure and there should be no directions, recommendations, or orders of the Commission issuing out of the proceedings today.

PN90

THE COMMISSIONER: I just want to say, it seemed on plain reading, it seems fairly plain, I don't know whether there is going to be too much LW in that one, but - yes, so you are saying that this meeting on 20 April should be able to take its course with the union having the option of coming back to the Commission is that is not successful?

PN91

MR JOHNSTON: That is correct, yes. I hope that would be our position, yes.

PN92

THE COMMISSIONER: Yes. Mr Hodgson?

PN93

MR HODGSON: Just if I may respond. We are encouraged by that Commissioner, because we were unaware that the CEO was actually available for that meeting on 20 April. Mr Douglas informs me that he hasn't been formally advised that the meeting is to go ahead.

PN94

THE COMMISSIONER: I see.

PN95

MR HODGSON: So we are encouraged by that, it seems that the application to the Commission, which there was some delay in the intention of lodging the application and the application being lodged, but it appears that the - because the matter has come to the Commission, the CEO has now made himself available and we are happy to go into conference to discuss where the matter should go. If it please the Commission.

PN96

THE COMMISSIONER: Very well. I propose to adjourn this matter to allow the conference to occur on 20 April and it always remains open for the union to come back and seek - but if we don't hear from you within a fortnight we will assume that it has all been resolved.

PN97

MR HODGSON: Thank you Commissioner.

PN98

THE COMMISSIONER: Thank you. This matter is adjourned.

ADJOURNED INDEFINITELY [11.27am]